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OFFENCES AGAINST THE ADMINISTRATION OF LAW AND JUSTICE - Corruption and disobedience - Fraud on the government

Friday, March 23, 2018 @ 1:28 PM  

Lexis Advance® Quicklaw®
Appeal from a judgment of the Ontario Court of Appeal setting aside the acquittal of Carson, who was charged with influence peddling. Carson agreed to use his government contacts to help H2O Professionals Inc. (H2O) sell water treatment systems to First Nations. In exchange, H2O promised to pay a commission to his then girlfriend on all sales of these systems to First Nations. After this agreement was made, Carson spoke to government officials at Indian and Northern Affairs Canada in order to promote the purchase of H2O’s products for use in First Nations communities. He was charged with influence peddling under s. 121(1)(d) of the Criminal Code. At trial, Carson took the position that his assistance was not “in connection with a matter of business relating to the government”. The trial judge agreed and acquitted him on the basis that First Nations, rather than government, decided whether to purchase the water treatment systems sold by H2O. The Court of Appeal allowed the appeal and substituted a conviction. The sole issue in this appeal was whether the assistance Carson promised to provide was in connection with “any matter of business relating to the government”.

HELD: Appeal dismissed. The relevant constituent elements of the offence set out in s. 121(1)(d) Cr.C. were: (1) having or pretending to have influence with the government, a minister, or an official; (2) directly or indirectly demanding, accepting, or offering or agreeing to accept a reward, advantage or benefit; (3) as consideration for the cooperation, assistance, exercise of influence, or an act or omission; (4) in connection with a transaction of business with or any matter of business relating to the government. The promised influence had to be actually connected to a matter of business relating to the government for the offence to be made out. The phrase “any matter of business relating to the government” had to be interpreted broadly. A matter of business related to the government if it depended on government action or could be facilitated by government, given its mandate. Thus, s. 121(1)(d) Cr.C. captured promises to exercise influence to change or expand government programs. The trial judge interpreted “any matter of business relating to the government” too narrowly. Interpreting s. 121(1)(a)(iii), as incorporated into s. 121(1)(d)(i), in harmony with surrounding provisions suggested that “any matter of business relating to the government” should be read broadly and purposively. As a result, “any matter of business relating to the government” was not limited to matters in which government played a direct approval role. This phrase included publicly funded commercial transactions for which the government could impose or amend terms and conditions that would favour one vendor over others. In this case, it was clear that Carson believed, at the time he made the agreement, that the sale of H2O’s products to First Nations could be facilitated by the government. Furthermore, the trial judge made the findings of fact necessary to conclude that the influence Carson promised to exercise was in connection with a “matter of business relating to the government” on a correct interpretation of this phrase. The Court of Appeal did not err in substituting a conviction to the acquittal entered by the trial judge.

R. v. Carson, [2018] S.C.J. No. 12, Supreme Court of Canada, B. McLachlin C.J. and R. Abella, M. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., March 23, 2018. Digest No. TLD-March192018012SCC